Since 1946, Ellery J. Caldwell and Gerald E. Cook have engaged in various aspects of the residential construction business in the vicinity of Rochester, New York. Until September 30, 1952, they operated entirely as a partnership, under the name of Caldwell & Cook, in which the two were equal partners. At that time, they formed Caldwell & Cook, Inc. (the Corporation) which assumed most of the operations of the partnership. Until 1954 the partnership remained inactive except for a small insurance business.

In July 1953, the Corporation experienced major labor difficulties when the local Allied Trades Council, in an unsuccessful attempt to pressure the Corporation into accepting a union contract, made it extremely difficult for it to obtain supplies and utilities for new homes. To prevent the recurrence of such a labor squeeze, Caldwell and Cook decided to divide the operations of the Corporation into an "owning company," a "construction company," and a "labor supply company." The "labor supply company" was expected to contract for its workmen's services with the construction companies. But if the "construction companies" encountered labor problems, it was hoped that the "owning company" could then contract with unrelated builders to have the work completed. Also, Cook and Caldwell, to minimize the possibility of future irreconcilable disagreements between themselves decided that each should have his own construction company. Accordingly, in June 1954, Cook formed the Sierra Construction Co., Inc. (Sierra) as his construction company; Caldwell formed Woodcroft Construction Co., Inc. (Woodcroft) as his; and they jointly organized Monroe Builders' Service Co., Inc. (Monroe) to employ the former workmen of the Corporation and to contract for the workmen's services with Sierra and Woodcroft. The Corporation became the "owning company," taking title to building lots and engaging in land development and sales promotion.

In August 1955, Caldwell organized petitioner Velmar Homes, Inc. (Velmar) purportedly to have an "owning company" under his sole control. Nine months later, in May 1956, Cook continued the separation of interests by forming petitioner Dorba Homes, Inc. (Dorba) as his personal "owning company." Velmar and Dorba bought lots, contracted primarily with affiliated construction companies for the building of homes, and sold the finished houses, usually at a profit.

Also in August 1955, petitioner Dewmar Construction Co., Inc. (Dewmar) was organized. Dewmar engaged in the construction of homes on sites owned by Velmar, Dorba, or by itself. Cook's wife, Dorothy, owned 80% of the outstanding shares of Dewmar and Cook himself owned the rest. The ostensible purpose for creating Dewmar was to protect Mrs. Cook against the untimely death of her husband by providing her with an estate of her own. Four years later, in July 1959, petitioner Lumar Homes, Inc. (Lumar) was formed as a construction company for Caldwell's wife, Lulu. The pattern of stock ownership, the alleged purpose and the activities of Lumar mirrored those of Dewmar.

In 1960, Caldwell and Cook decided to enter the business of building and selling homes on property located near Pittsford, New York, which was about 15 miles from the site of their earlier operations in Greece, New York. They estimated that the average cost of a completed home in Pittsford would be $7,000 more than in Greece and considered the project somewhat more venturesome. Allegedly in order to protect the assets of the existing corporations from the increased risks, Caldwell formed petitioner Powder Mill Homes, Inc. (Powder Mill) at his whollyowned company for Pittsford operations, and Cook organized petitioner Mendon Homes, Inc. (Mendon) for the same purpose.

From 1954 until 1956 or 1957, the Corporation was in charge of land development activities, and administrative and selling functions. At the end of that period the partnership assumed those responsibilities, and the function of the Corporation was limited to buying lots and contracting for the construction of houses thereon. Finally, in 1961, Cook and Caldwell together organized petitioner Landorama, Inc. to take over the land development activities of the partnership for the avowed purpose of limiting their personal liability with respect thereto.

Throughout the period, the formalities of each corporate entity were observed. The partnership (after 1960, Landorama, Inc.) developed land for sale to the "owning" corporations which in turn engaged the "construction" companies to erect houses. Monroe then contracted to supply skilled labor to the "construction" companies. In each transaction there was a charge based on cost plus a reasonable profit. For its part in selling the finished product, the partnership received the standard real estate commission. In addition, each corporation had its own books and records which were audited separately, and from which the auditors prepared separate financial statements. Each paid its own expenses from its separate bank account, entered into contracts in its own name, filed its own tax returns, delivered deeds in which it was named grantor and warranted the title of the property sold. The several corporations occasionally borrowed funds from each other.

The Commissioner determined that the taxable income reported by each corporation should be attributed to Caldwell & Cook, Inc. under §§ 61 and 482 of the Internal Revenue Code of 1954 (the Code); or, in the alternative, that the corporate surtax exemption for each corporation other than Caldwell & Cook, Inc. should be disallowed for the taxable years in dispute under § 269 of the Code.

The Tax Court held that the Commissioner's allocation of the entire taxable income of the corporations to Caldwell & Cook, Inc., under §§ 61 and 482, was arbitrary, unreasonable and unnecessary to prevent tax evasion or reflect income clearly. It also found that the corporations were not shams or mere paper entities, but active enterprises engaged in business. Furthermore, there was no evidence of actual shifting of income or deductions between Caldwell & Cook, Inc. and the other corporations. From this determination, the Commissioner does not appeal.

On the other hand, the Tax Court held that the principal purpose for the formation of petitioners Velmar, Dorba, Dewmar, Lumar, Powder Mill, Mendon and Landorama, Inc. was tax avoidance through the use of additional surtax exemptions in violation of § 269.*fn1 From this judgment, the petitioners appeal. The Commissioner, however, does not challenge the Tax Court's decision that the acquisition of control of Woodcroft, Sierra and Monroe was for no such proscribed purpose.

On this appeal two issues emerge. First, does the record sustain the Tax Court's finding of illegal purpose; and, second, did the Tax Court improperly attribute the shares of Lumar and Dewmar held in the names of their wives, to Caldwell and Cook themselves.

It is well settled that the petitioners bear the burden of proving that the principal purpose for the several incorporations was not tax evasion, J. T. Slocomb Co. v. Commissioner of Internal Revenue, 334 F.2d 269 (2 Cir. 1964); indeed, the Commissioner's determination of purpose is presumptively correct. Welch v. Helvering, 290 U.S. 111, 115, 54 S. Ct. 8, 78 L. Ed. 212 (1933). In this case, the essence of the Tax Court's decision is that petitioners have not carried that burden. If there is substantial support in the record for the Tax Court's determination, including inferences reasonably drawn from the evidence, this court must affirm, unless the Tax ...

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